Punishing Illegal Abortion

If abortion is murder, should aborting women be tried as murderers?

Punishing Illegal Abortion

If abortion is murder, should aborting women be tried as murderers?

Page Summary:

Should abortion be outlawed in the future, the question of appropriate, criminal punishment becomes a fairly difficult one. Though a satisfactory answer can be hard to come by, the existence of this moral dilemma in no way lessens the case against abortion itself.

Abortion supporters occasionally pose this question to pro-lifers: "If abortion were made illegal, how should we punish women who get them?" If pro-lifers are uncertain about this, or suggest anything less than a standard, homicide-type punishment, abortion proponents believe they have exposed a glaring weakness in the pro-life view. They might respond, "You say that abortion should be illegal because it is murder, yet you don't want to punish women who get abortions as murderers?! Clearly you are unwilling to practice what you preach!" There is a famous video on Youtube, the Libertyville Abortion Demonstration video, that attempts to discredit the pro-life position in this way.

To respond, it needs to first be emphasized that just because a pro-life proponent may be inconsistent in moving from their belief that abortion is murder to their belief about how illegal abortion should be punished, does not mean their belief about abortion is false. It only means, at worst, that they are inconsistent. Ultimately, the morality of abortion should be evaluated on whether or not it wrongfully kills an innocent human person, not on how consistently a pro-life proponent applies their belief to the hypothetical punishment of illegal abortions.

Second, there is historical precedent for making abortion illegal with severe punishment. Both in Britain and the United States, there is a long history of criminal abortion with specific punishments toward women, abortionists, and other accomplices. In Britain, in 1803, Lord Ellenborough's Act (43 Geo. 3, c. 58) made abortion a statutory offense for the first time. Prior to this abortion was a criminal offense both by Common Law and ecclesiastical law. This act made any attempt to induce the abortion of a quickened fetus with poisons a capital felony, and it further made any attempt (by the one performing and/or pursuing it) to induce an abortion before quickening (or without proof of quickening) subject to fine, imprisonment, pillory, whipping, or transportation to the penal colonies for up to 14 years. In 1828, the Offences Against Persons Act made attempting to induce the abortion of a quickened fetus with instruments (in addition to poisons) a capital offense. In 1837, the Offences Against Persons Act, eliminated capital punishment, removed the quickened vs. non-quickened distinction and made all abortion, at any stage of pregnancy, subject to the same penalty – transportation to the colonies from 15 years to life, or three years in prison. In 1861, the Offences Against Persons Act, s.58, changed the maximum penalty to life in prison and specifically condemned any woman attempting an abortion on herself. J. Keown, in his book Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in Enland from 1803 to 1982 , remarks that the purpose for these regulations was primarily to protect the life of the fetus. As the medical profession began to recognize that a fetus is indeed alive well before "quickening," this became reflected in the the amending of laws to protect fetal life at all stages of pregnancy.

Influenced by British laws against abortion, the first American statutory offense was enacted in Connecticut in 1821, making any attempt to induce abortion by poisons punishable by life in prison. This was revised in 1830, adding poisons and instruments as forbidden items. It also reduced the punishment to a maximum of ten years in prison. Missouri in 1825 and Illinois in 1827 enacted similar laws, but eliminated the quickened vs. non-quickened distinction. In 1830, New York's abortion laws took effect. First, an attempt to induce an abortion by any means, at any stage of pregnancy, was treated as a misdemeanor punishable by up to a year in prison, but abortion intended to destroy a fetus after quickening was specified to be second degree manslaughter. Second, New York made an exception for abortions necessary to preserve the mother's life or "advised by two physicians to be necessary for that purpose." A revision in 1845 included a provision that made the woman who submitted to abortion guilty of a misdemeanor. In 1881, this was amended to make the woman guilty of manslaughter, as the abortionist had been since 1830, if the abortion killed a quickened fetus. Every other state enacted abortion statutes in the 1800s (except for Kentucky, which did in 1910). In the 1960s and 70s, four states liberalized their abortion laws, but immediately preceding Roe v. Wade in 1973, 46 states had abortion as illegal on their books (with various states making exceptions for cases of rape and incest or cases where the mother's life was in danger). Thus, criminalizing abortion is not something new, and there is plenty of historical precedent to give guidance for illegal abortion, if it were to become so in the future.

A third consideration: even if the penalty for abortion were to be something less than the punishment for a standard homicide, it does not mean that abortion is a less heinous crime, or that fetuses are less valuable humans. Some states have more severe penalties for killing police officers, but this does not mean killing average citizens is less heinous or average citizens are less valuable.

As for how illegal abortion should be punished today, if it were to become illegal again, that is hard to say. Of course, if Roe were overturned all the former state laws would be re-enacted. But if historical precedent counts for anything, then the following seems appropriate for potential illegal abortion:

(1) Abortion at any stage of pregnancy should be made a criminal offense, with exceptions to preserve the life of the mother. This was a very standard historical position.

(2) A more severe punishment should be given to the abortionist, as he or she is the one profiting off the abortion practice and would likely have a much fuller understanding of what an abortion does to a developing human being in utero. Past statutes normally punished with a long prison sentence.

(3) A less severe punishment should be given to the woman found guilty of inducing abortion, with increasing severity for repeated offenses. However, since convicting someone of a crime requires evidence, and there likely would be little material evidence in abortion cases, it may be appropriate to offer the woman impunity or a lesser charge in exchange for testimony against the abortionist.